Field Trips – Legal liability Tom Baker Beachcroft LLP

Liability in Negligence – The Basics  University employees owe a duty to exercise reasonable care and skill in protecting students from reasonably foreseeable harm.  Persons exercising a particular skill or profession owe a higher duty of care.  If it is established that this duty has been breached, the next question to ask is ‘did the breach cause any harm to the student’?  If so, the duty only extends to harm that is reasonably foreseeable.  If all these elements are met an employee can be personally liable.  Liability can be extended to a situation where someone has negligently assumed responsibility

Vicarious Liability  More often than not a claim is pursued against the employer (University) rather than its employee as the University is insured.  For the University to be liable the employee must be acting in the ordinary course of their employment.  The employer is only liable for the acts of the employee once the duty of care has been established.

Limits on liability  The difficulty is determining where the boundaries of that liability lie.  The University is not liable for failing to control the private lives of students.  The University will not be liable for things outside its control.  The duty of care does not extend to unsupervised leisure time.

Case Law Erin Leigh McLean v The University of St Andrews  McLean removed herself from the ‘admitted duty of care which the defenders had towards the pursuer’.  Reasonable care and foreseeability are the key factors in determining liability. Tuttle v Edinburgh University  A warning is no substitute for proper training. Radcliff v McConnell  Obvious dangerous behaviour / pranks should not lead to a liability

Health and Safety at Work etc Act 1974  Employers (Universities) must ensure the health, safety and welfare of all their employees (not students). This extends to the provision of information, training and supervision.  They are under a duty to prepare a written statement of general policy with respect to the health and safety at work of employees.  The University must conduct its business so as not to put students at risk in relation to their health or safety. They should provide them with information about such things which may affect their health and safety.  Employees have a duty to take reasonable care for their own safety and those affected by their acts and to cooperate with the university with regard to health and safety requirements.

Management of Health and Safety at Work Regulations 1999  The duty of care is defined more explicitly as a duty of line management.  It is the responsibility of the governing body of a University and the Heads of School to make a suitable and sufficient risk assessments.  This duty is often delegated to staff organising the trip who must be sufficiently competent.  Students and staff should be fully informed of the nature of the work and the associated hazards.  There is a separate requirement that staff should be fully trained.

UCAE: Guidance on Safety in Fieldwork (1)  This booklet outlines the necessary steps to be taken for the safe management of fieldwork. If this guidance is followed it will help to show the duty of care has been discharged.  must carry out a suitable and sufficient risk assessment.  identify areas that present particular problems and act to remove risks or to reduce them to an acceptable level.  contingency planning for reasonably foreseeable emergencies must be made.

UCAE: Guidance on Safety in Fieldwork (2)  In light of the results of the risk assessment, a safe system of work should be devised and discussed. Field trip supervisors must be authorised and competent.  Any field trips need to be adequately supervised.  It is important that personnel are adequately trained for field trips.  Students should be issued with a written code of behaviour before the field trip begins, reminding them of their responsibilities to the University, staff and fellow students.

Corporate Manslaughter and Corporate Homicide Act 2007  Comes into force on 6 April 2008 and creates a new offence of Corporate Manslaughter.  An organisation is guilty if there has been a gross breach of the relevant duty of care owed to the deceased.  The relevant duty of care is the same as has already been discussed under the law of negligence.  In deciding if the breach is gross the jury can review the organisations culture and attitude to health and safety.  Penalties upon conviction include an unlimited fine, a remedial order and a publicity order.  Organisations can also face Health and Safety prosecutions.

Summary  Be active in monitoring the Universities trips  Carry out risk assessments!  Get the appropriate person to risk assess  Train employees!  Use written explanations of trips and give written warnings of any risks  Bring in the experts for serious incidents asap  Avoid risks if possible but let’s still encourage field trips  Take out the appropriate insurance!